Thursday, January 17, 2013

Roe v. Wade at 40: Acts, Omissions and Abortion

By Mike Dorf
On Justia's Verdict, my column today--part 1 of a 2-part series--marks the 40th anniversary of Roe v. Wade. Part 2 will appear next Wednesday, Jan. 23, one day after the actual 40th anniversary. In today's column, I explain why three common criticisms of Roe are either mistaken or, if credited, are not really arguments against Roe but much broader arguments against unenumerated rights and perhaps against all of judicial review. Here I want to expand a bit on one point I make in passing in the column.In discussing the contention that the courts have no business recognizing unenumerated rights, I note (as many others have noted before) that if this contention were true, then there would be no constitutional right against forced abortions. How might a critic of Roe who didn't want to get rid of all unenumerated rights reframe his or her argument more narrowly?Consider the 1989 oral argument in Webster v. Reproductive Health Services. The United States appeared as an amicus urging the Court to overturn Roe but, in the words of Charles Fried, who argued for the Bush I Administration, doing so would not "unravel the fabric of unenumerated and privacy rights." The government's position was that there are unenumerated constitutional rights but that abortion is not one of them. So, how did Fried deal with the question of forced abortion? Here's the relevant exchange with Justice O'Connor:

Justice O'Connor: Do you think that the state has the right to, if in a future century we had a serious overpopulation problem, has a right to require women to have abortions after so many children?

Mr. Fried: I surely do not. That would be quite a different matter.

Justice O'Connor: What do you rest that on?

Mr. Fried: Because unlike abortion, which involves the purposeful termination of future life, that would involve not preventing an operation but violently taking hands on, laying hands on a woman and submitting her to an operation and a whole constellation --

Justice O'Connor And you would rest that on substantive due process protection?

Mr. Fried: Absolutely.

This little exchange confirms the core point I make in my Verdict column: that many of the arguments directed at Roe -- e.g., "the Constitution doesn't mention abortion" -- cannot be taken seriously because they would do away with all sorts of other unenumerated rights and even many conservatives don't want that.

So, having endorsed substantive due process, how does Fried distinguish abortion prohibitions from forced abortions? He appears to make two arguments. First, by invoking "the purposeful termination of future life" Fried pretty clearly implies that he thinks the government has a powerful interest in forbidding abortion--protection of fetal life--and that this interest is absent in the example of forced abortion to address overpopulation. Fair enough. The question of whether the state's interest in fetal life is sufficient to override a woman's freedom to control her body is, obviously, what makes abortion a difficult issue. I'm not going to enter that debate here.

But Fried makes a second point that appears to be independent of the state's interest in fetal life, one that seems to say not only that the state has a powerful enough interest to override the interest of a woman in having an abortion, but that that interest is not of constitutional dimension in the first place. He draws an act/omission distinction. By prohibiting abortion, Fried implies, the state is not affirmatively doing anything to a woman who wants an abortion, and therefore an abortion prohibition is less of a violation of her liberty than requiring her to get an abortion would be.

This line of reasoning should sound familiar because it rests on the same logic as the view that underwrote much of the opposition to the insurance mandate in the Affordable Care Act litigation and larger debate. The idea is that government may act legitimately by stopping people from doing things (like buying broccoli or having abortions) but not by making them do things (like eating broccoli or having abortions). Now, in the ACA context, I thought the prohibition/mandate distinction was misguided for two core reasons: 1) It's about liberty rather than federalism; and 2) the ACA was at most analogous to a mandate to buy broccoli, not to eat it.

But those disanalogies aren't present with respect to the abortion issue. Here the question is about liberty and the intrusion really is bodily, not merely economic.

So was Fried right? Putting aside the nature of the state interest in the two cases, so far as the infringement on liberty, is there a qualitative difference between an abortion prohibition and an abortion mandate? I think the answer is pretty clearly not. Let's look at the matter from both sides.

To characterize an abortion prohibition as not entailing an affirmative obligation is obtuse at best. Even assuming that a woman who is legally forbidden from obtaining an abortion puts her baby up for adoption immediately upon birth, and thus avoids the affirmative obligation to care for a child until he or she becomes an adult, abortion prohibitions enlist women's bodies as involuntary incubators. As Eileen McDonagh argued in her 1996 book, if an already-born human did to a pregnant woman what a fetus does in the course of a normal pregnancy--even if the already-born human did so, as the fetus does, without intention--she would have a right to kill that "attacker" in self-defense. My point here is not that you need to find McDonagh's argument for the abortion right persuasive; just that it's borderline preposterous to call an abortion prohibition merely a negative prohibition rather than an affirmative intrusion.

Meanwhile, from the other side, we can imagine that forced abortions might be carried out without the state "laying hands on a woman," in Fried's phrase. Instead, a forced-abortion policy could be implemented through criminal punishments for failure to have an abortion when the birth of a child would violate the (hypothetical) population control measure. In short, both abortion prohibitions and forced abortions would amount to very serious affirmative intrusions on liberty rather than "mere" prohibitions, even though both could be accomplished as a formal matter without (or with) the state "laying hands on a" pregnant woman.

Having said all of the above, I want to be clear that I do think there are many contexts in which the act/omission distinction is extremely important. As a matter of everyday morality, the act/omission distinction enables us to live what we regard as at least minimally virtuous lives without giving away everything we have beyond what's needed to subsist, to those less fortunate than ourselves. I.e., we understand ourselves as obligated not to harm others but with a few special exceptions, we do not regard ourselves as under a duty to aid others. And I don't think this is merely a rationalization. We have strong moral intuitions that acting to cause harm is much worse than failing to prevent or remedy harm caused by others or by natural forces.

So my case against the act/omission distinction in the abortion context is a limited one. The distinction is important but it's also important to sort out where it should apply and where it should not.

9 comments:

Fried as a law clerk was key to writing Harlan's now greatly respected dissent in Poe v. Ullman and supports a right to privacy generally. He had a somewhat uncomfortable job during the Reagan years given some his fellow travelers beliefs on substantive due process etc.

The "involuntary incubators" reference calls to mind Andrew Koppelman's article raising the 13A & Dawn Johnsen getting in trouble even alluding to it in a footnote in a brief.

It is however a strong image that adds to the argument that there is an original understanding reason to back up abortion rights.

A negative prohibition on abortions doesn't entail an affirmative obligation that was *itself state-imposed.* Before the State ever even enters the picture, the woman is already carrying the fetus, due to her voluntary act in having sex (or her involuntary act of being raped). The State then merely steps in and prevents the act of terminating the pregnancy. So while the negative prohibition does require the woman to continue carrying the pregnancy, the pregnancy itself was not an affirmative duty imposed by the state. To analogize, if the State negatively prohibits homeowners from defaulting on their mortgages, it's certainly true that homeowners must continue to suffer under the affirmative obligation to pay their mortgages, but the duty itself was voluntarily incurred, not state-imposed.

Conversely, it's irrelevant what the prescribed *penalty* is for violation of an affirmative legal obligation. The fact remains that the State is mandating the obligation to act, on pain of legal penalty. To analogize again, a legal duty to rescue strangers or to pay for the poor is a legal duty regardless of whether the penalty for non-compliance with that duty is jail, a fine, or specific performance. (Of course, if there's no legal duty at all, just a tax on the voluntary choice not to rescue, that's a different matter.)

Hashim: Your analogy makes my point, not yours. A default is a failure to pay money owed, so “if the State negatively prohibits homeowners from defaulting on their mortgages,” as you put it, then the State “negatively prohibits” inaction, which is simply a confusing way of saying that the State is positively requiring an action - - payment. Here, as in the abortion case, the individual has voluntarily engaged in conduct (sex in the non-rape-based pregnancy case; borrowing money and promising to pay it back in the mortgage) that we might say gave rise to a moral duty - - if one thinks there is a moral duty to carry a pregnancy to term and/or a moral duty to repay loans. But in both cases, it’s OBVIOUSLY the State that converts that moral duty into a legal duty.

Here’s a better example for the point I think you’re trying to make: Suppose the state prohibits the taking of penicillin. Then someone who dies of untreated gonorrhea could be said not to have died at the hands of the state but at the hands of the disease. You might even say he died at his own hand because he undertook activity exposing himself to gonorrhea.

That’s a better example because the disease will kill him (eventually), whereas in the mortgage case, it’s only the law that will make the debtor pay.

But the argument still fails because in all of these cases the State has in fact seriously infringed on the individual’s liberty. None of these is remotely a case in which we might question the existence of state action (as in DeShaney, for example). As I said, the act/omission distinction is important to morality and because law sometimes incorporates moral judgments, the act/omission distinction is therefore sometimes important for law. But it is a very very poor proxy for the severity of an imposition on liberty. (Note, for example, that First Amendment case law does not treat forced speech as worse than prohibitions on speech.) Yet Fried appeared to argue that the prohibition/mandate distinction – which is a relative of the act/omission distinction -- is a good proxy for the scope of liberty infringed.

Of course I realize that the law often operates to coerce either action or inaction with penalties. My point was simply that Fried was wrong to suggest that in the case of a “forced abortion” the state would literally be “laying hands on” a woman. That’s simply not true. And once one recognizes as much, it’s often just a formalistic matter whether the law achieves an end through prohibitions or mandates. I very much doubt that Fried or anyone else who objects to forced abortions but not to abortion prohibitions would be fine with a law that, instead of requiring abortions, simply prohibited childbirth.

Finally, I want to emphasize that this post does not say that the Roe Court was correct to reject the state’s interest in fetal life as insufficient to override the liberty interest in having an abortion. And I’m not even now saying that consent to sex couldn’t be treated as consent to childbirth. But if that’s the argument, make it. Don’t pretend that abortion prohibitions aren’t tantamount to forcing continued pregnancy and childbirth.

Was Fried acting like an advocate in Webster or does he intellectually independently support this argument?

Hashim's comment is problematic. The girl (as it might be) or woman only has an "affirmative obligation" as a matter of law because the state puts it there.

Same with mortgages. Mortgages are debts that you are legally obligated to pay. W/o the law, you would only have a moral obligation or an obligation arising from pressure from "Uncle Jimmy."

Even there, the 13A prohibits the state from forcing you to "affirmatively" performing labor to pay the debt, even though you yourself entered into the mortgage voluntarily, a term more complicated in the sex context.

As to the last point, if you have a duty to rescue or you will be put in jail, there is a "legal duty," unless the term really doesn't have much of a meaning. A tax is another matter. It's like saying "I have no legal duty to grow cotton" if I can always go to jail instead. This sort of thing was rejected by Bailey v. Alabama.

Following on Professor Dorf's point, a "forced abortion" law would never be written as a forced abortion law or even a prohibition on childbirth. It would be written as a one-child (or two-child or three-child) policy, with criminal penalties for having more.

Most people would recognize an X-child policy as equivalent to a forced-abortion law. But that is precisly the same equivalency that exists between prohibiting abortions and mandating pregnancy and childbirth. In both cases, a legal prohibition is transformed into an affirmative obligation by the (usually) voluntary act of getting pregnant.

But the argument still fails because in all of these cases the State has in fact seriously infringed on the individual’s liberty. None of these is remotely a case in which we might question the existence of state action (as in DeShaney, for example).